Is Delhi blocking justice for Tibetans?

September 8, 2009

September 7th, 2009
By José Elías Esteve & Alan Cantos

Madrid - In 2005 and 2008, despite pressure from China, two historic Tibet
lawsuits were accepted in the Spanish high court under the principle of
"universal jurisdiction", a doctrine that allows courts to reach beyond
national borders in cases of torture, terrorism, genocide and crimes against
humanity. These two cases seek to hold Chinese leaders accountable for
killings, imprisonment and torture in Tibet.

As part of the legal process, Spanish judge Santiago Pedraz has written to
New Delhi seeking permission to interview Tibetan exiles resident in
Dharamsala in order to gather evidence for the cases. Why is Delhi delaying
its response to this judicial request?

Governments routinely collaborate on judicial matters to share information
and arrest and extradite criminals in order to prevent crime and impunity on
an international level. In most cases it is not only a right, it is an
obligation under international law and specific treaties. Most people
naturally approve of this "globalisation of justice" when it is applied in
order to prevent bombing, drug dealing or piracy, but it is a different
matter when exactly the same legal mechanisms are applied to international
and universal crimes such as genocide, torture, and crimes against humanity.

The discomfort increases exponentially if the countries affected by the
application of international law are extremely powerful, like China.

When Judge Pedraz informed the Chinese ministry of justice on May 5, 2009,
of rulings against eight Chinese leaders, including Tibet Autonomous Region
party secretary Zhang Qingli, in the Spanish high court in connection with
the harsh crackdown on dissent in Tibet that has been ongoing from March
2008, the Chinese reaction was swift and uncompromising.

Beijing demanded that the Spanish government - which holds the European
Union presidency next year - immediately ensure that these "false lawsuits"
were dropped. Privately, Chinese embassy representatives suggested that if
Judge Pedraz sought to pursue his investigations in China, he could be
arrested.

China's heavy-handed tactics over the Tibet lawsuits are consistent with its
attempts to block all debate on Tibet on the international stage, and its
subversion of international forums where its human rights record comes under
scrutiny.

But this should surely not affect India's response to a legitimate request
from one of the top Spanish judges in Madrid's high court? Sadly, it seems
this is already the case. The last time the Spanish court sought India's
permission for one of its judges to interview Tibetans exiled in India who
were witnesses and victims of repression, the Indian government said no - on
the basis of New Delhi's lack of recognition of both the Spanish cases and
the concept of "universal jurisdiction". This was despite the fact that
India had signed a Mutual Legal Assistance Treaty with Spain in 2006 which
included the assistance in legal cases by ensuring people could testify or
help with investigations.

India's response was disingenuous to say the least. It may, indeed, be
argued by India that it did not support the establishment of the
International Criminal Court, but the Indian government did ratify the
Genocide Convention and the Convention Against Torture, to name just two,
like most other countries. In addition, there is a clause of "compulsory
law" (ius cogens), dating back to the Nuremberg trials, which is tacitly
agreed by any country in the United Nations and also binds governments to
respond and collaborate in the face of certain international crimes.
A few years ago we were asked by a veteran Indian journalist about the
progress of the Madrid Tibet lawsuits, which have been acclaimed by civil
rights experts, progressive lawyers and those who seek to hold leaders
accountable for human rights abuses internationally. This journalist, who is
proud of India's democracy as well as the hospitality offered to the Dalai
Lama and the Tibetan exile community, was deeply saddened when we told him
about the Indian government's refusal to accede to Madrid's request to
interview Tibetan witnesses on Indian soil.

On January 19, Spanish Judge Pedraz submitted his request to travel to India
to interview Tibetan victims and witnesses in Dharamsala, home of the Dalai
Lama in Himachal Pradesh. So far no answer has been forthcoming.
Judge Pedraz repeated the same request to the Indian ministry of justice on
July 19, but again there was no response.

The purpose of the Tibet lawsuits is not only to seek justice for the
Tibetan people, but also to provide an opportunity for the truth to be known
and not to be repeated and for the individual Tibetans who have undergone
immeasurable suffering due to Chinese policies to bear witness after 50
years of impunity and passivity. India must adhere to its legal and
democratic commitments, not to mention its noble tradition of free
expression and democracy, and should not block these ground-breaking cases
of international justice any further.

* José Elías Esteve, professor of international law and international
relations, University of Valencia, Spain, is the main research lawyer in
both Tibet lawsuits, and Alan Cantos, president of the Spanish Tibet Support
Committee, is the main plaintiff in both cases